[Federal Register: August 2, 2006 (Volume 71, Number 148)]
[Rules and Regulations]
[Page 43643-43652]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02au06-2]
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA74
Federal Sector Equal Employment Opportunity
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission (EEOC or
Commission) is issuing a final rule implementing the posting
requirements set forth in Title III of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act),
Pub. L. 107-174. The No FEAR Act requires a Federal agency to post on
its public Web site summary statistical data pertaining to complaints
of employment discrimination filed under 29 CFR part 1614 by employees,
former employees and applicants for employment. Title III authorizes
EEOC to issue rules concerning the ``time, form and manner'' of the
postings, to define the terms ``issue'' and ``basis,'' and to issue any
other ``rules necessary to carry out'' Title III.
DATES: Effective Date: August 2, 2006.
FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal
Counsel, Gary John Hozempa, Senior General Attorney, or Mona Papillon,
Senior General Attorney at (202) 663-4669 (voice) or (202) 663-7026
(TTY). This final rule also is available in the following alternative
formats: large print, braille, audiotape and electronic file on
computer disk. Requests for the final rule in an alternative format
should be made to EEOC's Publication Center at 1-800-669-3362 (voice),
1-800-800-3302 (TTY), or 703-821-2098 (FAX--this is not a toll free
number).
SUPPLEMENTARY INFORMATION:
Introduction
On January 26, 2004, EEOC published in the Federal Register an
interim final rule setting forth the time, form and manner in which an
agency shall post summary statistical EEO complaint data. 69 FR 3483
(2004). The interim rule included a 60-day comment period, which
subsequently was extended an additional 30 days. 69 FR 13473 (2004).
EEOC received over 140 comments on the interim rule. One hundred
and nine comments were submitted by persons identifying themselves as
members of the ``No FEAR Coalition.'' Sixteen comments were submitted
by Federal agencies and departments. Four comments were submitted by
civil rights groups composed of Federal employees, one was submitted by
a national civil rights group, one by an association of Federal EEO
executives, one by a Member of Congress, and one was submitted by an
association of Federal agency Web content managers. EEOC also received
seventeen comments from individuals, most of whom identified themselves
as Federal or former Federal employees.
The Commission has considered carefully all of the comments and has
made some changes to the interim rule in response to the comments. The
comments EEOC received and the changes made to the interim rule are
discussed in more detail below.
Amendments to Complaints
When EEOC circulated its first draft of the interim rule under
Executive Order 12067, the regulation required that, when posting
information about the bases and issues raised in a complaint, agencies
include bases and issues added by amendment. Agencies commenting on
this provision argued that if bases and issues added by amendment were
to be included among the data, withdrawals of issues and bases likewise
should be reflected. When
[[Page 43644]]
EEOC issued its interim final rule it decided to drop the requirement
that agencies track amendments.
Based on comments received on the interim final rule, both from
agencies and members of the public, EEOC has reconsidered its approach
and now believes that bases and issues added by amendment should be
included among the posted data. EEOC is particularly concerned that the
number of times retaliation is alleged will not be portrayed accurately
if amendments are not tracked. As a number of commenters noted,
complainants often allege that they have been retaliated against for
having filed an earlier, pending complaint. These claims of retaliation
are considered like and related to the initial complaint and therefore
must be treated as amendments to the initial complaint rather than as
separate complaints. See EEOC Management Directive 110, Chapter 5,
Example 6 at page 5-11. Since EEOC believes amendments adding a claim
of retaliation need to be captured, EEOC also believes it is best to
capture all issues and bases that are added.
Tracking amendments requires that an agency post the basis or issue
raised in the amendment when it is time to post quarterly or year-end
data for the current fiscal year, whichever posting period occurs first
after a complaint is amended. Where the amendment of a complaint filed
in a prior fiscal year occurs in the current fiscal year, an agency
shall not go back and modify prior fiscal year data regarding issues
and bases since prior year data in these categories is unaffected by
amendments occurring in subsequent fiscal years.
Bases and Issues
The interim rule requires that an agency post the number of
complaints raising each basis of alleged discrimination and the number
of complaints raising each challenged employment action. A few agencies
opined that this will make it appear as if more complaints have been
filed than is actually the case.
Given that sections 301(b)(4) and (5) of the No FEAR Act
specifically require that this information be posted, EEOC does not
have the discretion to change this part of the rule. Moreover, agencies
must post the total number of complaints filed. Persons viewing all
three data categories will be able to ascertain that the total number
of times a basis or issue is asserted does not correspond to the number
of complaints actually filed. Therefore, there is no basis for concern
that the number of complaints filed will appear inflated.
Other commenters objected to the requirement that an agency post a
complaint as having been filed even if it raises a basis not protected
by one of the Federal EEO statutes. One objection was that such a
complaint is not really an EEO complaint and therefore should not be
counted. Another objection was that the inclusion of complaints raising
a non-EEO basis unintentionally could convey the message that an EEO
complaint can be maintained regardless of the basis alleged.
The very designation ``non-EEO'' basis will alert a viewer that the
complaint falls outside the scope of the EEO laws. Thus, EEOC does not
believe that requiring agencies to post this information will mislead
the public into believing that employment discrimination laws protect
an employee or applicant from non-covered forms of discrimination.
Complaints raising a non-EEO basis, such as whistle blowing, will be
dismissed. EEOC believes, however, that it is important to know how
many claims filed under part 1614 do not belong in that process because
it may indicate that employees need to be better informed of their
rights and the correct forums in which to pursue their allegations of
wrongdoing, or that persons are misusing the EEO complaint process.
A few commenters were concerned about bases that are mislabeled by
a complainant. Where a complainant appears to misidentify a basis
(e.g., the complainant alleges race discrimination and identifies her
race as ``Danish'') and the agency determines that the complainant's
intent is to raise a national origin claim, the agency shall post only
the corrected basis.
Counseling
A few commenters objected to the absence of counseling data in the
posting requirements, arguing that counseling is an important part of
the process. EEOC's initial decision not to have agencies post
counseling activity was based on its conclusion that the No FEAR Act
does not address pre-complaint activity, which would include
counseling. Nothing proffered in the comments convinces EEOC that its
initial interpretation was in error.
That EEO counseling activity will not be tracked under the No FEAR
Act does not lessen its importance or minimize EEOC's belief that
counseling is a vital component of the Federal sector complaint
process. Many matters brought to a counselor's attention are resolved
before they become formal complaints. Counselors further perform the
very valuable function of assisting complainants to accurately define
the matters about which they wish to complain. EEOC requires agencies
to report counseling activity on the Form 462 (``Annual Federal Equal
Employment Opportunity Statistical Report of Discrimination
Complaints'') because it believes the counseling function is
significant.
Definitions
Based on some of the comments EEOC received, there appears to be
some confusion regarding the definition of ``appeal'' under Sec.
1614.702(i). The appeal step of the process is to be distinguished from
the request for reconsideration stage. Consequently, when posting data
pursuant to Sec. 1614.704(l)(2)(ii) (pending complaints filed in prior
fiscal years) agencies need not track a complaint that is awaiting a
decision on a request for reconsideration because it is not pending at
the appeal stage.
EEOC Form 462
A few agencies opined that, now that they must post EEO data under
Title III (and report EEO data under Title II), EEOC should discontinue
the use of EEOC Form 462. As an alternative, a few agencies suggested
that they be allowed to consolidate EEOC Form 462 with the information
they must post under the No FEAR Act.
Form 462 seeks more, and in many cases different, information than
is required to be posted under the No FEAR Act. While the posting of No
FEAR data is primarily for use by the public, Form 462 data is intended
for EEOC use and is delivered directly to EEOC for this reason. In
addition to reporting consolidated Form 462 data to Congress, EEOC
reviews each agency's report to assess that agency's compliance with
its EEO obligations under part 1614. These roles, reporting to Congress
and assessing an agency's EEO program, are not responsibilities given
to EEOC under the No FEAR Act. As a result, EEOC does not regard an
agency's posting obligations under the No FEAR Act as serving the same
purpose as its Form 462 reporting requirements. For these reasons, EEOC
will not discontinue the use of Form 462.
Enforcement
A number of comments focused on the fact that the interim rule does
not contain an enforcement mechanism in the event an agency fails to
post its EEO data. Some commenters want EEOC to fashion a scheme in
which EEOC can sanction agencies and agency managers for non-
compliance. While directing the
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Commission to establish the ``time, form, and manner'' in which an
agency must post its EEO data, the statute does not specify what
action, if any, EEOC may take in the event an agency does not fulfill
its posting obligations. Since the statute neither authorizes EEOC to
sanction agency non-compliance nor sets forth the means by which EEOC
can compel compliance, EEOC has not created an enforcement mechanism.
Government-Wide Data
A few commenters suggested that EEOC post government-wide EEO
statistics on its Web site, using each agency's posted data as the
source material. Since the statute does not require EEOC to post
consolidated data and given that EEOC already consolidates Form 462
data, which overlaps somewhat with the No FEAR data, EEOC has decided
not to consolidate government-wide No FEAR data.
In a similar vein, commenters suggested that EEOC post on its Web
site a regularly updated listing indicating which agencies fully are in
compliance with the posting requirements, partially are in compliance,
or have not posted data. Again, this is beyond the responsibilities
imposed by the statute and EEOC therefore will not implement the
suggestion.
Issuance of the Interim Final Rule
Some commenters questioned EEOC's reasons for issuing an interim
final rule rather than a final rule. EEOC's implementation of this rule
as an interim final rule with provision for post-promulgation public
comment was based upon the exceptions found at 5 U.S.C. 553(b)(A),
(b)(B) and (d). Agency posting obligations under Title III of the No
FEAR Act began in the first quarter of FY 2004. It was essential that
agencies understood their responsibilities regarding the posting
requirements so that they could begin capturing EEO data immediately.
EEOC determined under 5 U.S.C. 553(b)(A) that this regulation, which
covers the time, form and manner of agency postings under Title III of
the No FEAR Act, affects agency organization, procedure, or practice
and has no effect on the substantive rights of non-agency parties. In
addition, it was feared that the absence of rules or the later
promulgation of rules would result in confusion concerning the posting
requirements, to the detriment of the public. EEOC therefore determined
under 5 U.S.C. 553(b)(B) that it would be contrary to the public
interest to delay promulgation of these rules by issuing a notice of
proposed rule making rather than the interim final rule that was
issued. For the same reasons, EEOC determined under 5 U.S.C. 553(d)(3)
that there was good cause for the rule to become effective immediately
upon publication with provision for post-promulgation public comment.
An additional advantage to this approach was that agencies were able to
try out the rules, and the public was able to observe how agencies
sought to comply with them, thus informing the comments they submitted
to EEOC.
Link Location, Link Name, Search Engines and URLs
Section 1614.703(d) of the interim rule requires an agency to title
its posted EEO information ``Equal Employment Opportunity Data Posted
Pursuant to the No Fear Act.'' This section further requires an agency
to prominently place a hyperlink to the data on the homepage of its
public Web site. There was some objection both to the location of the
hyperlink and its name.
As for the location, agencies argue that their homepages already
are well populated with hyperlinks which primarily are mission-
specific. Adding another hyperlink, thereby producing crowding, may in
fact be counter-productive. Moreover, many people visiting an agency
Web site do so through hyperlinks from other non-agency Web sites or
search engines that bypass an agency's homepage. Some agencies allow
internet users to compose a personal homepage, which again bypasses the
agency's standard homepage. For these and other reasons, the agencies
that commented uniformly were of the opinion that a hyperlink on an
agency's homepage is not the best way to ensure the public's assess to
an agency's posted EEO data. These agencies therefore suggested that
each agency decide itself where to place its EEO data and hyperlinks to
that data since each agency best knows where a target audience goes to
look for certain information. A number of agencies offered suggestions
where the hyperlink would be better placed, such as on the ``About the
Agency'' or ``Working for the Agency/Employment'' pages.
The Commission is concerned that without a uniform hyperlink
location members of the public seeking EEO data from more than one
agency will have trouble finding the data. If one agency's hyperlink is
on the ``About the Agency'' page, another's is on the ``Employment
Opportunities'' page, another's is on a page entitled ``Civil Rights,''
and another's is on the homepage, locating the data for multiple
agencies could well end up as an exercise in trial and error. Even
assuming that the homepage is not the best or most intuitive location
for the hyperlink, EEOC is convinced that it would not be in the public
interest to allow each agency to decide where on its Web site it will
place the hyperlink. Thus, if not the homepage, EEOC must dictate
another uniform location. The problem is that there are no other
locations common to all agency public Web sites. Agencies do not label
their ``About the Agency'' and ``Employment'' pages identically. Not
every agency has an ``Employment Opportunities page. Thus, there is no
way to standardize through a rule an alternative location for the link.
This leaves only the homepage as the one Web page all agencies possess
in common, and therefore it is the homepage which shall house the link.
Regarding the title of the hyperlink, EEOC agrees that it is too
wordy. EEOC, however, does not agree that the label ``No FEAR'' will be
widely misunderstood by members of the public. On the contrary, the
term ``No FEAR Act'' has attained familiarity among employees and those
involved in EEO matters. Accordingly, the final rule provides that the
hyperlink shall be called ``No FEAR Act Data.'' However, agencies will
be required to title the page where its data appears as follows:
``Equal Employment Opportunity Data Posted Pursuant to Title III of the
Notification and Federal Employee Antidiscrimination and Retaliation
Act of 2002 (No FEAR Act), Pub. L. 107-174.''
In furtherance of making every agency's No FEAR Act data easily
accessible, it was suggested that agencies maintain their posted data
so that it is readily retrievable by commercial search engines. EEOC
agrees and has added a subsection setting forth this requirement.
Finally, some commenters suggested that each agency provide EEOC
with the hyperlink to its No FEAR data and that EEOC post the agency
hyperlinks in one location on EEOC's public Web site. EEOC has decided
to adopt this suggestion. Therefore, the final rule contains the
requirement that an agency provide EEOC with the URL for the location
of its No FEAR data and provide URL updates as necessary. Agencies can
e-mail their URLs to EEOC at NoFEAR.URLS@eeoc.gov.
Other Data
Some commenters disagreed with EEOC's position that EEO data not
required to be posted by the statute cannot be posted with No FEAR data
but may appear elsewhere. Commenters argued that by excluding other,
related
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data, agencies are forced to present an incomplete view of their EEO
performance. Commenters especially believed data regarding complaints
found to be without merit by an administrative judge or EEOC should be
posted along with the No FEAR Act data.
Other commenters wanted additional information posted because they
believe it would indicate whether an agency is engaging in a pattern of
discrimination, or is unfairly processing complaints, or obstructing
the EEO complaint process. It was suggested, for example, that agencies
post the grade levels of persons filing complaints, the number of
complaints that allege unfair processing, the number of work hours an
agency expends on EEO complaint processing, the number of days beyond
the regulatory time frame it takes an agency to complete an
investigation in a specific case, and the number of terminations,
including constructive discharges, for each protected group.
Admittedly, the categories of data set forth in the statute do not
present a complete view of an agency's EEO compliance. But the
categories represent the information Congress deems most important and
EEOC believes this information should not be obscured or rendered less
prominent through juxtaposition with other non-required data.
Consequently, the final rule specifically prohibits an agency from co-
mingling other data with that required to be posted under the statute.
An agency may, however, include a link on the No FEAR data page to any
additional or related data it posts on another Web page.
Pending Complaints Filed in Prior Fiscal Years
As explained in the preamble to the Interim Final Rule, section
301(b)(10) of the No FEAR Act ``specifies that an agency must look at
all complaints pending in a current fiscal year and post the number
that were filed before the start of that fiscal year * * * The Act
further requires an agency to post the number of individuals who filed
the complaints that were filed before the start of the current fiscal
year * * * [O]f the complaints that were filed prior to the current
fiscal year and are still pending, the agency shall specify how many of
the complaints are at each specific processing step.''
Section 1614.704(k) of the Interim Final Rule was intended to
implement sections 301(b)(10)(A) and (B) of the Act. As one commentor
pointed out, subsections 1614.704(k)(2) and (3) as contained in the
Interim Final Rule can be read as applying to all pending complaints
and not just those that were filed in prior fiscal years. The
Commission agrees that the language of these provisions is overbroad
and has redrafted them in re-designated subsections 1614.704(l)(2)(i)
and (ii) to make clear that they apply only to pending complaints filed
in prior fiscal years.
Posting by Subelements
The interim final rule provides that an agency must post on its
public Web page separate data pertaining to its subelements. The
interim final rule defines a subelement as ``any organizational sub-
unit directly below the agency or department level which has 1,000 or
more employees.'' A few persons commented that the 1,000 employee
threshold is too low. Others argued that it is too high. EEOC chose the
1,000 employee figure because that was the figure EEOC was planning to
use for reporting under EEOC Management Directive 715 (affirmative
programs of equal employment opportunity). After the interim final rule
was published, EEOC issued instructions for compliance with EEOC
Management Directive 715 (MD-715). These instructions require that, of
those subordinate components having 1,000 or more employees, only those
``enjoying a certain amount of autonomy'' constitute subordinate
components for purposes of reporting under MD-715.
In order to maintain consistency, the final rule adopts the
distinction used in reporting under MD-715. As a result, the final rule
substitutes the term ``subordinate component'' for ``subelement.'' The
definition of ``subordinate component'' is the same as the definition
of ``second level reporting component'' used in the instructions to MD-
715. The change to the definition will mean that there will be fewer
subordinate components for which separate data must be posted. More
importantly, requiring agencies to report on subordinate components
based on functional criteria, such as operating autonomy from the
parent agency, will result in more meaningful data.
The concept of subordinate components is discussed in Question and
Answer No. 5 in EEOC's publication, ``Frequently Asked Questions About
Management Directive-715,'' which can be accessed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eeoc.gov/federal/qanda-md715.html.
A list of the second level
subordinate components can be accessed at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eeoc.gov/federal/715instruct/agencylist.html
.
Some commenters objected to the fact that EEOC is not requiring
agency subordinate components to post component data on their
respective public Web pages. The final rule requires that an agency
with a qualifying subordinate component post on the parent agency's
public Web site both consolidated, agency-wide, EEO data (i.e., data
deriving from the entire parent agency including any subordinate
components) and separate data for each of its subordinate components.
The physical location of where this data is posted, whether on the
agency's public Web page or the component's, should not matter to the
end-user. The final rule requires that subordinate components that have
their own Web sites shall post a link on their homepages to their
component-specific data. So long as a link to the component's data can
be found on both the component's and parent agency's Web homepages, the
data can be accessed from either Web site. In short, being able to
access the data is what is important, not where in cyberspace the data
is stored.
Posting Format
In the preamble to the interim rule, EEOC stated that it had not
decided whether to mandate a uniform posting format and layout but
would revisit the issue when promulgating the final rule. No agency
stated that EEOC should not develop a standard format. Thirteen
agencies, on the other hand, asked EEOC to develop a standardized form
or format for posting data. The rationale most often cited was that a
uniform template would make it easier for interested parties to compare
data among agencies. Interestingly, some agencies favoring a template
nevertheless wanted to be able to choose whether to use EEOC's template
or another one.
In the Commission's view, there is no point in making a template
available if its use is not mandatory. A random review of agency Web
sites indicates that there are a variety of formats in use. Some
agencies, for example, present data in ascending chronological order
while others do the opposite. Some agencies use formats that omit
certain categories of data. Having given the matter careful
consideration, EEOC has decided that a uniform template will make it
easier to compare agency data and help agencies to post all required
data. Accordingly, we have created a standard format that must be used
by all agencies having 100 or more employees and all subordinate
components. Two smaller agencies suggested that agencies having minimal
EEO complaint activity use a modified posting format appropriate to the
amount of data being
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reported. EEOC agrees. Therefore, agencies having fewer than 100
employees have the option of using any posting format that provides all
required information for those complaints.
The Commission has devised a format setting forth the manner in
which agencies must present their No FEAR data on their public Web
sites. The format is intended to give agencies a visual indication of
how data is to be presented. This format can be viewed on EEOC's public
Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.eeoc.gov/stats/nofear/index.html.
As can be seen, prior fiscal year and cumulative quarterly data
shall be presented in vertical columns. The current cumulative
quarterly data shall appear in the right-most column for which data is
entered (the last column reading left to right), and the most recent
prior fiscal year data shall appear in the column immediately to the
left of the cumulative quarterly data. The data for the remaining
fiscal years shall appear in each succeeding column to the left, so
that the oldest fiscal year data appears in the left-most column for
which data is posted.
The categories of data that must be posted shall appear in the
horizontal rows. The first row for which data is posted shall contain
the number of complaints filed for that particular reporting period.
The remaining rows shall, reading top to bottom, contain the data set
forth in subsections 1614.704(a)-(m) in the order in which each
subsection occurs in the regulation.
While developing the standard format, we noted some inconsistencies
between the bases listed in Sec. 1614.702(j) and reported on EEOC Form
462. First, the interim rule uses the term ``retaliation'' whereas Form
462 uses the term ``reprisal.'' Second, Form 462 lists the Equal Pay
Act as a basis while interim 702(j) does not. Finally, the order of the
bases as listed in interim 702(j) differs slightly from that on Form
462. In order to regularize an agency's reporting burdens, while at the
same time enhancing the degree of detail available to the public
through the posting of No FEAR data, we have decided to conform the
bases in the final version of section 702(j) to that on Form 462.
Accordingly, we have added the Equal Pay Act basis, changed the term
``retaliation'' to ``reprisal,'' and listed the bases in the manner in
which they appear on the Form 462. The term ``reprisal'' as used in
this subpart should not be construed to include the type of reprisal
covered by the Federal whistleblower protection laws. Rather, it refers
to any action taken against an individual either because that
individual opposed any practice made unlawful by the Federal employment
discrimination laws or participated in any manner in any proceeding
under those laws.
Public Hearings
Seventy-eight percent (78%) of the comments were received from the
No FEAR Coalition or persons identifying themselves as members of the
No FEAR Coalition. The No FEAR Coalition members submitted their
comments using an identical or nearly identical letter. The Coalition
requested that EEOC convene public hearings in different parts of the
country in order to address the issues of employment discrimination and
EEOC's rule making under the No FEAR Act. The Coalition requested that
EEOC establish a citizens' advisory board that would oversee EEOC's
promulgation of this final rule. The Coalition made suggestions that
have been raised by other commenters, such as developing a rule that
will ensure managers found to have engaged in discrimination are
appropriately disciplined, that these manager's names be provided to
Congress, that counseling data be among that required to be posted,
that amendments to complaints be tracked, and that data pertaining to
agency subordinate components be posted.
Those comments provided by the Coalition and which also were raised
by others are discussed both above and below. With respect to holding
public hearings as part of the rule making process, EEOC is required by
the Administrative Procedure Act to ``give interested persons an
opportunity to participate in the rule making through submission of
written data, views, or arguments with or without opportunity for oral
presentation.'' 5 U.S.C. 553(c). Thus, although an agency is permitted
to accept comments through oral presentations, it is not required to do
so. There is certainly no requirement in the Act for a public hearing.
EEOC believes that the written comment process has provided meaningful
public participation in this rule making.
In this regard, EEOC extended the initial 60-day public comment
period and additional 30 days at the request of the No FEAR Coalition.
As noted, many members of the Coalition submitted comments which the
Commission carefully has considered. Additionally, during the public
comment period the Chair of the Commission met with members of the No
FEAR Coalition to discuss the substance of EEOC's rule making. We
believe the public, including the No FEAR coalition, have had a
meaningful opportunity to participate in the Title III No FEAR rule
making process.
Moreover, EEOC's rule making duties under Title III of the No FEAR
Act are straightforward. Title III requires an agency to post on its
public Web site summary statistical data pertaining to complaints of
employment discrimination filed with the agency. The statistics that
shall be posted are set forth specifically in the statute. EEOC's only
role is to issue rules establishing the ``time, form and manner'' in
which the statistics are posted. In such a narrow context, public
hearings as an adjunct to written comments would not better inform
EEOC's rule making process in any appreciable manner. It is unlikely
that ideas as to when or how pre-defined statistics should be posted on
an agency Web site could or would be better communicated orally than in
writing. Accordingly, EEOC concludes that holding the suggested
regional public hearings will not significantly aid the rule making
process. Similarly, EEOC does not believe it would be advantageous to
convene a citizens' advisory board. Finally, as noted above, holding
public hearings or convening a citizens advisory committee is not
required by the No FEAR or Administrative Procedure Acts.
Remands
A number of complaints are dismissed by agencies on procedural
grounds (e.g., failure to comply with the applicable time limits,
failure to state a claim). The complainant can appeal the dismissal to
EEOC. If EEOC finds the complaint was dismissed improperly, EEOC
remands the complaint to the agency for further processing. A few
commenters inquired how these complaints should be handled once they
are returned to the agency for processing.
Once the complaint is remanded, the agency will have to track its
status for posting purposes but only with respect to subsequent
information applicable to the remanded complaint. Thus, for example,
information previously posted about the issues and bases raised in the
complaint shall not be changed regardless of whether the remanded
complaint is returned to the agency with more, less, or different
issues and bases. All pertinent information applicable to the
subsequent processing of the complaint (e.g., whether it was timely
investigated following remand, whether it subsequently involves a
finding of discrimination with or without a hearing) shall be posted.
With respect to remanded complaints where the investigation was not
completed prior to the agency's dismissal of the complaint,
[[Page 43648]]
the investigative period for purposes of Sec. 1614.704(f) will include
both the period between the dates the complaint initially was filed and
dismissed and the period between the dates the EEOC's remand becomes
final and the investigation is completed. For purposes of posting data
under Sec. 1614.704(l) (pending complaints filed in prior fiscal
years), a remanded complaint will retain its original filing date.
Settlements
A few commenters noted that the interim final rule is silent on the
issue of settlements and asked how settlement information should be
tracked. The No FEAR Act does not require an agency to post settlement
information (e.g., how many complaints were settled, when or where in
the process settlement took place, the bases and issues that were
settled, etc.) and consequently neither the interim nor the final rule
deal with settlements. Prior to settlement, an agency shall post all
required information (e.g., a complaint was filed, the number of
persons who filed the complaint, the issues and bases raised in the
complaint, whether the investigation was completed within the
applicable period if settlement occurred after the investigative step).
Once a complaint is settled, subsequent information about the complaint
does not have to be tracked (but see next paragraph). An allegation by
a complainant, pursuant to 29 CFR 1614.504, that the agency has
breached a settlement agreement does not constitute a complaint for
purposes of this subpart and therefore information about a breach
allegation is not information that must be posted.
In certain breach situations, a previously settled complaint can be
reinstated by EEOC and the agency ordered to process the complaint from
the point processing ceased at the time of settlement. See 29 CFR
1614.504(c). All pertinent information applicable to the subsequent
processing of the reinstated complaint shall be posted. An agency shall
ignore, however, the period between the settlement date and the date
EEOC's reinstatement decision becomes final when posting data under
Sec. 1614.704(f) and (m).
It should be noted that while Title III of the No FEAR Act does not
require an agency to post data regarding settlements, the reporting
provisions under Title II of the Act apply to certain agreements made
in settlement of claims brought under Federal antidiscrimination and
whistleblower protection laws. In reporting the amounts reimbursed to
the Judgment Fund, an agency must include any payments made as part of
a settlement agreement in connection with litigation in Federal court.
Also in connection with cases brought in Federal court, including those
that are settled, an agency must report the number of employees
disciplined and the types of disciplinary actions taken for conduct
inconsistent with Federal antidiscrimination and whistleblower
protection laws.
Short Form Title
Some commenters objected to EEOC's use of the term ``No FEAR Act''
as a shorthand method of referring to the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002. These
commenters opined that the term does not appear in the statute, use of
the phrase in the Library of Congress's Thomas search engine does not
lead to the statute, members of the public may confuse the term with
matters having to do with homeland security, and members of the public
will not associate the term with employment discrimination.
The term ``No FEAR'' is, like most shorthand titles for statutes,
an acronym: Notification and Federal Employee Antidiscrimination and
Retaliation Act. It is the popular name by which this statute is known
and it is commonly and widely used in the media and throughout the
Federal government. The full name of the statute appears at the
beginning of this preamble and the regulation. EEOC believes this
provides the public with information sufficient both to know under what
statute these rules are being promulgated and to find the statute
should members of the public wish to read it.
Title II Issues
While Title III of the No FEAR Act requires an agency to post EEO
complaint data on its public Web site, Title II imposes other
requirements. With respect to Federal employment discrimination and
whistleblower protection laws, Title II mandates, among other things,
that an agency: (1) Reimburse the Judgment Fund for payments concerning
violations or alleged violations of Federal employment discrimination
laws, Federal whistleblower protections laws, and retaliation claims
arising from the assertion of rights under these laws; (2) notify
covered individuals of their rights and protections under the Federal
EEO laws; and (3) submit an annual report to Congress, EEOC, the Office
of Personnel Management, and the Attorney General detailing, among
other information, disciplinary actions taken against employees for
conduct inconsistent with Federal antidiscrimination and whistleblower
protections laws. Title II empowers the President or the President's
designee to issue rules necessary to carry out that Title. The
President delegated this rule making authority to the Office of
Personnel Management (OPM).
It appears that a number of commenters did not distinguish between
EEOC's rule making authority under Title III and OPM's authority under
Title II. Thus, for example, commenters urged EEOC to write rules
ensuring that there would be management accountability for
discriminating against employees, comprehensive training for employees
(and managers) concerning the protections afforded them and the
obligations imposed upon them under the various Federal statutes, and
accurate agency reporting to Congress. As explained, however, these
issues do not fall within the rule making authority applicable to Title
III of the No FEAR Act and EEOC therefore has no authority to address
them.
Withdrawn Complaints
In conjunction with comments received on whether amendments to
complaints should be tracked, certain commenters suggested that the
posted data track the number of complaints that are withdrawn by
complainants. EEOC agrees. Therefore, EEOC has added the requirement in
a new subsection 1614.704(h) that an agency post the number of
complaints that are withdrawn in a given fiscal year. An agency shall
track a withdrawn complaint in the same manner it tracks a complaint
that is dismissed. That is, in tracking withdrawals, an agency shall
not revise posted data pertaining to the number of complaints that have
been filed in order to reflect the withdrawal. Rather, the withdrawal,
like a dismissal, shall be accounted for in a separate data column.
Miscellaneous Comments
A few commenters discussed provisions not included in the No FEAR
Act which they believe should have been included; for example,
authority for EEOC to sue agencies directly and award punitive damages
to Federal employees. Others called for EEOC to promulgate rules beyond
the posting requirements set forth in Title III, arguing that to do so
would make the posting requirements more effective. Suggestions
included: Requiring agencies to post the names of agency employees
found to have engaged in prohibited discrimination; referring
[[Page 43649]]
such persons to the Office of Special Counsel for possible disciplinary
action; adding specific notations to such persons' Official Personnel
Files indicating that they had been found to have engaged in prohibited
discrimination; requiring agencies to review their posted EEO data in
order to determine whether there were problem areas or managers. Other
comments addressed the need for sanctions for the posting of false or
incomplete data. One commentor wanted EEOC to clarify both the
authority of EEOC administrative judges under part 1614 and the hearing
process in general. All of these suggestions are beyond the scope of
EEOC's authority under the No FEAR Act.
Matters of General Applicability
A few commenters wondered how to calculate percentages required by
the rule. The percentage components under Sec. 1614.704(i)(2) and (3),
(j)(1), and (k)(1) are to be based on the number of final actions
rendered in that fiscal year which involve findings of discrimination,
and not the total number of final actions rendered in that fiscal year
regardless of whether a finding of discrimination is involved. With
respect to Sec. 1614.704(j)(2) and (3) and Sec. 1614.704(k)(2) and
(3), the percentage figure shall be based on the total number of
findings for that particular subcategory.
Example: An agency issues 100 final actions in a given fiscal year,
25 of which involve findings of discrimination. Of those 25 cases
involving findings of discrimination, 15 were rendered after a hearing
and 10 were rendered without a hearing. Of the 15 rendered after a
hearing, 10 involve findings of race discrimination and 5 involve
findings of sex discrimination. Of the 10 rendered without a hearing, 5
involve findings of race discrimination and 5 involve findings of age
discrimination. In posting its percentage data under Sec.
1614.704(i)(2) and (3), the agency will report that 40% (10 of 25) of
the final actions involving discrimination were rendered without a
hearing and that 60% (15 of 25) were rendered after a hearing. (The
agency also will post under Sec. 1614.704(i)(1) that there were 25
final actions involving findings of discrimination). In posting
percentage data under Sec. 1614.704(j)(1), the agency will post that
15 and 60% (15 of 25) of the final actions involving a finding of
discrimination were based on race discrimination, 5 and 20% (5 of 25)
were based on sex discrimination, and 5 and 20% (5 of 25) were based on
age discrimination. Under Sec. 1614.704(j)(2), the agency will post
that 5 and 33% (5 of 15) of the final actions involving race
discrimination were rendered without a hearing and that 5 and 100% (5
of 5) of the final actions involving age discrimination were rendered
without a hearing. The agency further will post that 10 and 66% (10 of
15) of the final actions involving race discrimination were rendered
after a hearing and that 5 and 100% (5 of 5) of the final actions
involving sex discrimination were rendered after a hearing.
EEOC's explanatory comments in the preamble to the interim final
rule applicable to those provisions that have not been changed in the
final rule should continue to be used as guidance. That language can be
found at 69 FR 3483 (2004).
Regulatory Procedures
Executive Order 12866
Pursuant to Executive Order 12866, EEOC has coordinated this final
rule with the Office of Management and Budget. Under section 3(f)(1) of
Executive Order 12866, EEOC has determined that the regulation will not
have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State or local tribal governments or communities.
The posting requirements contained in Title III of The No FEAR Act
apply only to Federal executive agencies, the United States Postal
Service, and the Postal Rate Commission. All of these agencies,
including EEOC, are required by the No FEAR Act to post statistical
data on their public Web sites pertaining to EEO complaints filed with
them. In addition, EEOC has to post government-wide data pertaining to
requests for EEO hearings and appeals of EEO complaints.
Much of the information that will be used as source material to
post the statistical data required by Title III already is collected
and maintained by the agencies in connection with their pre-existing
reporting obligations. All affected agencies currently maintain public
Web sites. Consequently, the Congressional Budget Office estimated that
the total cost for all agencies to comply with The No FEAR Act's
posting requirements will not exceed $5 million annually. House Rept.
107-101 Part 1, June 14, 2001, p 11-12. Also, according to the CBO, it
will cost EEOC $500,000 annually to post the additional government-wide
data required by Sec. 302. Id. Thus, the total cost of Title III of
the No FEAR Act should be less than $5.5 million annually.
The benefits of posting EEO data will flow not just to the Federal
agencies but to the public. An agency will be able to compare its EEO
program statistics against prior quarters and years to determine if
there are trends that need to be addressed or whether progress is being
made. An agency can also compare its statistics against those of other
agencies. Both types of analyses should be useful to the agency in
monitoring its own compliance with 29 CFR part 1614 and ensuring equal
opportunity in the agency's employment programs. Public posting will
ensure that members of the public will have access to this information
and will be able to make independent assessments of agencies'
compliance and progress. Agency employees will be able to assess the
degree to which their agency provides equal employment opportunity.
Likewise, potential job applicants will be able to judge the relative
desirability of each agency's working environment. The public display
of this information should provide agencies with added incentives to
improve their EEO programs and to prevent discrimination proactively so
that they can demonstrate that they are true equal employment
opportunity employers. Increased monitoring and improved compliance
through public posting of EEO statistics should lead to a decline in
incidents of employment discrimination, which is the primary goal of
the No FEAR Act.
Paperwork Reduction Act
This regulation contains no new information collection requirements
subject to review by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. chapter 35).
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities, because it does not affect any small business entities. The
regulation affects only Federal Government entities. For this reason, a
regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions
[[Page 43650]]
of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)).
Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the Commission.
Dated: July 27, 2006.
Cari M. Dominguez,
Chair.
0
Accordingly, for the reasons set forth in the preamble, EEOC amends 29
CFR part 1614 as follows:
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
0
1. The authority citation for part 1614 continues to read as follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218; E.O. 11222, 3
CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR, 1069 Comp., p. 133;
E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg. Plan No. 1 of 1978, 3
CFR, 1978 Comp., p. 321.
0
2. Subpart G is revised to read as follows:
Subpart G--Procedures Under the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)
Sec.
1614.701 Purpose and scope.
1614.702 Definitions.
1614.703 Manner and format of data.
1614.704 Information to be posted--all Federal agencies.
1614.705 Comparative data--all Federal agencies.
1614.706 Other data.
1614.707 Data to be posted by EEOC.
Authority: Sec. 303, Pub. L. 107-174, 116 Stat. 574.
Subpart G--Procedures Under the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (No FEAR Act)
Sec. 1614.701 Purpose and scope.
This subpart implements Title III of the Notification and Federal
Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act),
Pub. L. 107-174. It sets forth the basic responsibilities of Federal
agencies and the Commission to post certain information on their public
Web sites.
Sec. 1614.702 Definitions.
The following definitions apply for purposes of this subpart.
(a) The term Federal agency or agency means an Executive agency (as
defined in 5 U.S.C. 105), the United States Postal Service, and the
Postal Rate Commission.
(b) The term Commission means the Equal Employment Opportunity
Commission and any subdivision thereof authorized to act on its behalf.
(c) The term investigation refers to the step of the federal sector
EEO process described in 29 CFR 1614.108 and 1614.106(e)(2) and, for
purposes of this subpart, it commences when the complaint is filed and
ceases when the complainant is given notice under Sec. 1614.108(f) of
the right to request a hearing or to receive an immediate final
decision without a hearing.
(d) The term hearing refers to the step of the federal sector EEO
process described in 29 CFR 1614.109 and, for purposes of Sec.
1614.704(l)(2)(ii), it commences on the date the agency is informed by
the complainant or EEOC, whichever occurs first, that the complainant
has requested a hearing and ends on the date the agency receives from
the EEOC notice that the EEOC Administrative Judge (AJ) is returning
the case to the agency to take final action. For all other purposes
under this subpart, a hearing commences when the AJ receives the
complaint file from the agency and ceases when the AJ returns the case
to the agency to take final action.
(e) For purposes of Sec. 1614.704(i), (j), and (k) the phrase
without a hearing refers to a final action by an agency that is
rendered:
(1) When an agency does not receive a reply to a notice issued
under Sec. 1614.108(f);
(2) After a complainant requests an immediate final decision;
(3) After a complainant withdraws a request for a hearing; and
(4) After an administrative judge cancels a hearing and remands the
matter to the agency.
(f) For purposes of Sec. 1614.704(i), (j), and (k), the term after
a hearing refers to a final action by an agency that is rendered
following a decision by an administrative judge under Sec.
1614.109(f)(3)(iv), (g) or (i).
(g) The phrase final action by an agency refers to the step of the
federal sector EEO process described in 29 CFR 1614.110 and, for
purposes of this subpart, it commences when the agency receives a
decision by an Administrative Judge (AJ), receives a request from the
complainant for an immediate final decision without a hearing or fails
to receive a response to a notice issued under Sec. 1614.108(f) and
ceases when the agency issues a final order or final decision on the
complaint.
(h) The phrase final action by an agency involving a finding of
discrimination means:
(1) A final order issued by an agency pursuant to Sec. 1614.110(a)
following a finding of discrimination by an administrative judge; and
(2) A final decision issued by an agency pursuant to Sec.
1614.110(b) in which the agency finds discrimination.
(i) The term appeal refers to the step of the federal sector EEO
process described in 29 CFR 1614.401 and, for purposes of this subpart,
it commences when the appeal is received by the Commission and ceases
when the appellate decision is issued.
(j) The term basis of alleged discrimination refers to the
individual's protected status (i.e., race, color, religion, reprisal,
sex, national origin, Equal Pay Act, age, or disability). Only those
bases protected by Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. 2000e et seq., the Equal Pay Act of 1963, 29 U.S.C.
206(d), the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. 621 et seq., and the Rehabilitation Act of 1973, as amended,
29 U.S.C. 791 et seq., are covered by the federal EEO process.
(k) The term issue of alleged discrimination means one of the
following challenged agency actions affecting a term or condition of
employment as listed on EEOC Standard Form 462 (``Annual Federal Equal
Employment Opportunity Statistical Report of Discrimination
Complaints''): Appointment/hire; assignment of duties; awards;
conversion to full time; disciplinary action/demotion; disciplinary
action/reprimand; disciplinary action/suspension; disciplinary action/
removal; duty hours; evaluation/appraisal; examination/test;
harassment/non-sexual; harassment/sexual; medical examination; pay/
overtime; promotion/non-selection; reassignment/denied; reassignment/
[[Page 43651]]
directed; reasonable accommodation; reinstatement; retirement;
termination; terms/conditions of employment; time and attendance;
training; and, other.
(l) The term subordinate component refers to any organizational
sub-unit directly below the agency or department level which has 1,000
or more employees and is required to submit EEOC Form 715-01 to EEOC
pursuant to EEOC Equal Employment Opportunity Management Directive 715.
Sec. 1614.703 Manner and format of data.
(a) Agencies shall post their statistical data in the following two
formats: Portable Document Format (PDF); and an accessible text format
that complies with section 508 of the Rehabilitation Act.
(b) Agencies shall prominently post the date they last updated the
statistical information on the Web site location containing the
statistical data.
(c) In addition to providing aggregate agency-wide data, an agency
shall include separate data for each subordinate component. Such data
shall be identified as pertaining to the particular subordinate
component.
(d) Data posted under this subpart will be titled ``Equal
Employment Opportunity Data Posted Pursuant to Title III of the
Notification and Federal Employee Antidiscrimination and Retaliation
Act of 2002 (No FEAR Act), Pub. L. 107-174,'' and a hyperlink to the
data, entitled ``No FEAR Act Data'' will be posted on the homepage of
an agency's public Web site. In the case of agencies with subordinate
components, the data shall be made available by hyperlinks from the
homepages of the Web sites (if any exist) of the subordinate components
as well as the homepage of the Web site of the parent agency.
(e) Agencies shall post cumulative data pursuant to Sec. 1614.704
for the current fiscal year. Agencies may not post separate quarterly
statistics for the current fiscal year.
(f) Data posted pursuant to Sec. 1614.704 by agencies having 100
or more employees, and all subordinate component data posted pursuant
to subsection 1614.703(c), shall be presented in the manner and order
set forth in the template EEOC has placed for this purpose on its
public Web site.
(1) Cumulative quarterly and fiscal year data shall appear in
vertical columns. The oldest fiscal year data shall be listed first,
reading left to right, with the other fiscal years appearing in the
adjacent columns in chronological order. The current cumulative
quarterly or year-end data shall appear in the last, or far-right,
column.
(2) The categories of data as set forth in Sec. 1614.704(a)
through (m) of this subpart shall appear in horizontal rows. When
reading from top to bottom, the order of the categories shall be in the
same order as those categories appear in Sec. 1614.704(a) through (m).
(3) When posting data pursuant to Sec. 1614.704(d) and (j), bases
of discrimination shall be arranged in the order in which they appear
in Sec. 1614.702(j). The category ``non-EEO basis'' shall be posted
last, after the basis of ``disability.''
(4) When posting data pursuant to Sec. 1614.704(e) and (k), issues
of discrimination shall be arranged in the order in which they appear
in Sec. 1614.702(k). Only those issues set forth in Sec. 1614.702(k)
shall be listed.
(g) Agencies shall ensure that the data they post under this
subpart can be readily accessed through one or more commercial search
engines.
(h) Within 60 days of the effective date of this rule, an agency
shall provide the Commission the Uniform Resource Locator (URL) for the
data it posts under this subpart. Thereafter, new or changed URLs shall
be provided within 30 days.
(i) Processing times required to be posted under this subpart shall
be recorded using number of days.
Sec. 1614.704 Information to be posted--all Federal agencies.
Commencing on January 31, 2004 and thereafter no later than 30 days
after the end of each fiscal quarter beginning on or after January 1,
2004, each Federal agency shall post the following current fiscal year
statistics on its public Internet Web site regarding EEO complaints
filed under 29 CFR part 1614.
(a) The number of complaints filed in such fiscal year.
(b) The number of individuals filing those complaints (including as
the agent of a class).
(c) The number of individuals who filed two or more of those
complaints.
(d) The number of those complaints, whether initially or through
amendment, raising each of the various bases of alleged discrimination
and the number of complaints in which a non-EEO basis is alleged.
(e) The number of those complaints, whether initially or through
amendment, raising each of the various issues of alleged
discrimination.
(f) The average length of time it has taken an agency to complete,
respectively, investigation and final action by an agency for:
(1) All complaints pending for any length of time during such
fiscal year;
(2) All complaints pending for any length of time during such
fiscal year in which a hearing was not requested; and
(3) All complaints pending for any length of time during such
fiscal year in which a hearing was requested.
(g) The number of complaints dismissed by an agency pursuant to 29
CFR 1614.107(a), and the average length of time such complaints had
been pending prior to dismissal.
(h) The number of complaints withdrawn by complainants.
(i)(1) The total number of final actions by an agency rendered in
such fiscal year involving a finding of discrimination and, of that
number,
(2) The number and percentage that were rendered without a hearing,
and
(3) The number and percentage that were rendered after a hearing.
(j) Of the total number of final actions by an agency rendered in
such fiscal year involving a finding of discrimination,
(1) The number and percentage of those based on each respective
basis,
(2) The number and percentage for each respective basis that were
rendered without a hearing, and
(3) The number and percentage for each respective basis that were
rendered after a hearing.
(k) Of the total number of final actions by an agency rendered in
such fiscal year involving a finding of discrimination,
(1) The number and percentage for each respective issue,
(2) The number and percentage for each respective issue that were
rendered without a hearing, and
(3) The number and percentage for each respective issue that were
rendered after a hearing.
(l) Of the total number of complaints pending for any length of
time in such fiscal year,
(1) The number that were first filed before the start of the then
current fiscal year,
(2) Of those complaints falling within subsection (l)(1),
(i) The number of individuals who filed those complaints, and
(ii) The number that are pending, respectively, at the
investigation, hearing, final action by an agency, and appeal step of
the process.
(m) Of the total number of complaints pending for any length of
time in such fiscal year, the total number of complaints in which the
agency has not completed its investigation within the time required by
29 CFR 1614.106(e)(2) plus any extensions authorized by that section or
Sec. 1614.108(e).
[[Page 43652]]
Sec. 1614.705 Comparative data--all Federal agencies.
Commencing on January 31, 2004 and no later than January 31 of each
year thereafter, each Federal agency shall post year-end data
corresponding to that required to be posted by Sec. 1614.704 for each
of the five immediately preceding fiscal years (or, if not available
for all five fiscal years, for however many of those five fiscal years
for which data are available). For each category of data, the agency
shall post a separate figure for each fiscal year.
Sec. 1614.706 Other data.
Agencies shall not include or otherwise post with the data required
to be posted under Sec. 1614.704 and 1614.705 of this subpart any
other data, whether or not EEO related, but may post such other data on
another, separate, Web page.
Sec. 1614.707 Data to be posted by EEOC.
(a) Commencing on January 31, 2004 and thereafter no later than 30
days after the end of each fiscal quarter beginning on or after January
1, 2004, the Commission shall post the following current fiscal year
statistics on its public Internet Web site regarding hearings requested
under this part 1614.
(1) The number of hearings requested in such fiscal year.
(2) The number of individuals filing those requests.
(3) The number of individuals who filed two or more of those
requests.
(4) The number of those hearing requests involving each of the
various bases of alleged discrimination.
(5) The number of those hearing requests involving each of the
various issues of alleged discrimination.
(6) The average length of time it has taken EEOC to complete the
hearing step for all cases pending at the hearing step for any length
of time during such fiscal year.
(7)(i) The total number of administrative judge (AJ) decisions
rendered in such fiscal year involving a finding of discrimination and,
of that number,
(ii) The number and percentage that were rendered without a
hearing, and
(iii) The number and percentage that were rendered after a hearing.
(8) Of the total number of AJ decisions rendered in such fiscal
year involving a finding of discrimination,
(i) The number and percentage of those based on each respective
basis,
(ii) The number and percentage for each respective basis that were
rendered without a hearing, and
(iii) The number and percentage for each respective basis that were
rendered after a hearing.
(9) Of the total number of AJ decisions rendered in such fiscal
year involving a finding of discrimination,
(i) The number and percentage for each respective issue,
(ii) The number and percentage for each respective issue that were
rendered without a hearing, and
(iii) The number and percentage for each respective issue that were
rendered after a hearing.
(10) Of the total number of hearing requests pending for any length
of time in such fiscal year,
(i) The number that were first filed before the start of the then
current fiscal year, and
(ii) The number of individuals who filed those hearing requests in
earlier fiscal years.
(11) Of the total number of hearing requests pending for any length
of time in such fiscal year, the total number in which the Commission
failed to complete the hearing step within the time required by Sec.
1614.109(i).
(b) Commencing on January 31, 2004 and thereafter no later than 30
days after the end of each fiscal quarter beginning on or after January
1, 2004, the Commission shall post the following current fiscal year
statistics on its public Internet Web site regarding EEO appeals filed
under part 1614.
(1) The number of appeals filed in such fiscal year.
(2) The number of individuals filing those appeals (including as
the agent of a class).
(3) The number of individuals who filed two or more of those
appeals.
(4) The number of those appeals raising each of the various bases
of alleged discrimination.
(5) The number of those appeals raising each of the various issues
of alleged discrimination.
(6) The average length of time it has taken EEOC to issue appellate
decisions for:
(i) All appeals pending for any length of time during such fiscal
year;
(ii) All appeals pending for any length of time during such fiscal
year in which a hearing was not requested; and
(iii) All appeals pending for any length of time during such fiscal
year in which a hearing was requested.
(7)(i) The total number of appellate decisions rendered in such
fiscal year involving a finding of discrimination and, of that number,
(ii) The number and percentage that involved a final action by an
agency rendered without a hearing, and
(iii) The number and percentage that involved a final action by an
agency after a hearing.
(8) Of the total number of appellate decisions rendered in such
fiscal year involving a finding of discrimination,
(i) The number and percentage of those based on each respective
basis of discrimination,
(ii) The number and percentage for each respective basis that
involved a final action by an agency rendered without a hearing, and
(iii) The number and percentage for each respective basis that
involved a final action by an agency rendered after a hearing.
(9) Of the total number of appellate decisions rendered in such
fiscal year involving a finding of discrimination,
(i) The number and percentage for each respective issue of
discrimination,
(ii) The number and percentage for each respective issue that
involved a final action by an agency rendered without a hearing, and
(iii) The number and percentage for each respective issue that
involved a final action by an agency rendered after a hearing.
(10) Of the total number of appeals pending for any length of time
in such fiscal year,
(i) The number that were first filed before the start of the then
current fiscal year, and
(ii) The number of individuals who filed those appeals in earlier
fiscal years.
[FR Doc. E6-12432 Filed 8-1-06; 8:45 am]
BILLING CODE 6570-01-P